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What John Roberts Doesn’t Get About Corruption

Quite a lot, it turns out.

By ZEPHYR TEACHOUT

April 14, 2014

But the most essential flaw in using quid pro quo to define the limits of the meaning of corruption is that it doesn’t actually have clear boundaries. Even within the areas where quid pro quo has been litigated since its invention in the 1970s, the term has no definite meaning either in constitutional or white-collar criminal law. In white-collar criminal cases, quid pro quo sometimes means the solicitation or offer of something specific in exchange for some specific governmental action. It sometimes requires a spoken or written request, and sometimes something less, when the potential bribe is a campaign contribution. As the Sixth Circuit recently quipped, just before citing The Godfather, “Not all quid pro quos are made of the same stuff.”

In fact, some federal circuits’ definitions of quid pro quo encompass the exchange of money for unspecified influence—in other words, quid pro quo does not require that a particular governmental action be tied to the gift. In one important case, David Rosen, the former CEO of MediSys Health Network, was convicted for paying legislators to help him within the New York state legislature and state agencies. The officials he paid didn’t agree to perform specific official acts, but to help out in the future. Rosen appealed on the grounds that there was no quid pro quo because the governmental actions weren’t defined. In other words, he was paying for future influence, not for a particular thing. The Second Circuit rejected Rosen’s appeal and concluded—following established precedent—that quid pro quo encompasses even those situations where the quo can’t be tied to the quid. They call it “as opportunities arise” quid pro quo.

Chief Justice Roberts alludes to this problem briefly in his McCutcheon decision, when he writes, “The line between quid pro quo corruption and general influence may seem vague at times, but the distinction must be respected in order to safeguard basic First Amendment rights.” In other words: There is no line, respect the line. Roberts is right that vagueness is no reason to reject an important principle, making it all the more perplexing that he refuses to delve into the principle itself.

What ought he have done? Roberts should have engaged this lack of clarity more directly by moving past the term quid pro quo and talking about values, American history and political philosophy. There is no magic answer or way to define the corrupt from the not-corrupt, any more than there is a magic answer or way to distinguish “democracy” from “not democracy,” or “due process from “not due process,” or any other central American principle. For all of these, we would do better to plumb American history and democratic theory and the lived life of American politics. To put it gently, I find his process—for something so essential—disturbingly glib.

Roberts gets around these difficult questions by drawing on a particular set of meanings of quid pro quo that were never intended to define corruption. He cites McCormick v. United States, a 1991 case about a West Virginia state legislator named Robert McCormick who had sponsored legislation that was favorable to a group of foreign doctors. The problem was, McCormick had called the doctors’ lobbyist to tell him that his 1984 re-election campaign was getting expensive. According to the lobbyist, McCormick’s tone of voice—if not his actual words—strongly implied that he needed a campaign contribution. The lobbyist assumed the contribution would help the doctors’ proposed legislation, and the doctors duly pitched in with a series of small cash donations. When McCormick was convicted of violating federal bribery law, he appealed.

The Supreme Court overturned McCormick’s conviction and started stumbling toward a definition of what constituted corruption in the context of white-collar bribery law. In this context and only in this context, payments must have been made in return for an “explicit promise” to do (or not do) an official act.

So here is Roberts’s ringer, right? McCormick said that in campaign finance, that’s what quid pro quo means? Wrong. First, the justices in that case were interpreting a federal statute, not the Constitution. Second, the reason for their ruling was that Congress had created a kind of safe harbor around campaign donations under a certain amount when it enacted the post-Watergate campaign finance regime. In that opinion, they were upholding the regime—including the specific numerical rules encompassed in it. They used quid pro quo in this context for reasons that had nothing to do with any historical conception of corruption, or with any historical conception of quid pro quo: They did it because of concerns that the federal bribery laws, by their terms, would violate the due process clause. And they worried that if every $2,000 contribution made with intent to influence a candidate was a potential bribe, no one would fund campaigns, and Congress has implicitly endorsed private funding of campaigns.

The irony of the Citizens United and McCutcheon decisions is that they will create a greater push to use bribery prosecutions in close cases to deal with corruption. If Congress can’t pass simple, prophylactic rules—like aggregate limits—political pressure will fall on prosecutors to use statutes that require proof of corrupt intent. Many modern scholars dislike using these kinds bribery laws for corruption protection for the same reason the McCormick court did: It can lead to selective prosecution, and it puts an extraordinary amount of power in the hands of political opponents. Structural rules—like the kind the court struck down in McCutcheon—are better because there is none of that lack of clarity.

Structural rules also happen to be the kind of rules favored by America’s founding fathers, who rarely invoked criminal bribery laws in the hundreds of discussions they had about corruption. In fact, the framers fought constantly about the best ways to protect against corruption. They worried about excessive private interests overtaking the public sphere, a corruption that appeared constantly without any quid pro quo—it showed up when parliamentarians became too dependent on King George for jobs, it showed up when the king of France gave expensive gifts to diplomats, it showed up when people went into public office in order to get a sinecure.

Back then, the sinecure might have been at the post office; now, it is more frequently at a lobbying firm. This broader understanding of corruption—like quid pro quo—is also vague at the margins. But it represents a deep American value, one that Congress and the states have every right to defend in legislation limiting excessive contributions and expenditures.

So, to John Roberts, I say: Forget Latin—let’s invoke our own history.

Zephyr Teachout is fellow at the New America Foundation and associate law professor at Fordham Law School. Her book, Corruption in America: From Benjamin Franklin’s Snuff Box to Citizens United, will be published by Harvard University Press in September.